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RedTailHawk
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# Posted: 18 Dec 2013 10:41pm
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I bought my cabin property just over a year ago. This past summer I received a call from the local town water department (I don't use water dept, I have my own well) and they wanted to know if I had any problems signing the Right of Way. I said I had no idea what they were talking about but to give me more info. Long story short, it seems the Town had filed a civil claim against the previous owner seeking a ROW across the property so they could get to the water pumps that were installed just beyond my property. ???? My first thought was "how did they get there to install the pumps initially?" Turns out they have a right of way up and over the mountain, so I'm not sure why they need another ROW. Anyway, I proposed a road maintenance agreement for them to make sure they take care of my .5 mile dirt/gravel road across my property. They came back and said that they would not enter into any sort of road maintenance agreement. WTF? They want to use my property but not promise to clean up after themselves.
Anyway, a couple issues here that I'm trying to sort out. First, why wasn't I notified during the closing process last year about this outstanding suit? (Even my mortgage company, Wells Fargo, says they didn't know about it).
Second, since it has been an open civil claim for so long the town went ahead and filed for emininent domain. They want to lay claim to part of my but again, they don't want to agree to take care of the road.
Does anyone have any experience with ROWs, eminent domain, fighting a suspect local govt, going after the previous seller and/or title mortgage firm?
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silverwaterlady
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# Posted: 18 Dec 2013 10:54pm
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Just a guess,since the property has a new owner they need to ask your permission to use the road.
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MtnDon
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# Posted: 18 Dec 2013 11:02pm
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You need a lawyer. If there were undisclosed suits, claims or whatever on/against the property you were wronged. I have no idea what the fix will be, but you need a lawyer. Get one now, later may be too late. Now that you've had conversations with the government official you have to react unless you want to let them steamroller you.
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bobrok
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# Posted: 18 Dec 2013 11:20pm
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Doesn't filing a civil claim imply that there was some wrongdoing on the part of the defendant? You didn't do anything wrong by buying the property.
Do you have a title insurance policy? This is designed to protect you in situations such as this.
And, as you imply, they could be bluffing their way onto your property.
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neb
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# Posted: 18 Dec 2013 11:29pm
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I totally agree with MtnDon and bobrok. Like they said you should be protected by title insurance and you need to get a lawyer. They will walk all over you if you don't fight it. Get a lawyer.
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optimistic
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# Posted: 18 Dec 2013 11:31pm
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Who is your title insurance company? It starts and ends there. I am sure Wells Fargo made you, and good thing they do, get title insurance. They supposed to do due diligence on these matters.
I would give them a call and see because guess what? they don't call them insurance for nothing. If they messed up - you need to be compensated.
Also, call the town and ask them to provide you with the documents of when they filled all these things so you can run it by the title insurance company. Those little towns can sometime do things the "unorthodox" way so you need to be on top of them.
I wouldn't be so worried if I were you.
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RedTailHawk
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# Posted: 18 Dec 2013 11:46pm
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Thanks everyone. I'll contact the town water dept tomorrow to get a copy of their original civil action against previous owner and then I'll contact an attorney.
I will add that I did contact an attorney back in the early fall when I first started figuring out what was going on. He didn't seem interested and sort of suggested that it wasn't worth spending money to fight it. (Is the whole town in on this?) Needless to say the attorney I'm contacting tomorrow is from outside the area.
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Truecabin
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# Posted: 19 Dec 2013 01:40am - Edited by: Truecabin
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what problem are you trying to solve
is there a right of way or not? agreed you dont want to add one or add a road
if they were not successful in getting the right of way recorded then there is no right of way
if it was recorded but the titel company missed it the title company is liable
maybe they need access only if there is a problem or once a year
maybe theres good reasons to make friends and no reason to make enemies
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Jim in NB
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# Posted: 19 Dec 2013 03:45am
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Good luck to you.
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silverwaterlady
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# Posted: 19 Dec 2013 04:02am - Edited by: silverwaterlady
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I like what Truecabin said.We gave ROW to the three cabin owners that have cabins down the road we own (our cabin is down another road we own). The cabins are land locked except for one and the only way for the owner to get there is by water. We take a ride down the road every summer,there are no branches that need trimming or potholes because the people that use the road maintain it.
This was all done by verbal agreement. That's how we do things in a small community. Its small local government correct? The people working for local gov are your neighbors. Why dont you go down there and talk to them? The water pumps supply the town with water? Your neighbors water? I hope you find the answers you are looking for.
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bldginsp
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# Posted: 19 Dec 2013 08:11am - Edited by: bldginsp
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I wonder if there is a legal difference between a 'right of way' and a recorded easement. Perhaps they are the same thing.
When dealing with a government agency, my advice is to be persistent and consistent. If you have a legitimate point you may have to hammer them with it many times before they finally figure out that it is not in their interest to persist, or that it is in their interest to compromise and give you the road maintenance agreement.
Remember that they are just a bunch of employees who have been given the job of 'enforcing' the 'law'. Well, exactly what the law is is one thing, and exactly what they are willing to do to 'enforce' it is another, and if faced with a persistent citizen with a consistent message their interpretation of exactly what the law is and how to enforce it might become flexible, particularly when they become sick of the issue and sick of listening to you. I've seen it happen.
If you get a road maintenance agreement, be sure it is enforceable. five years from now if they put ruts in the road and don't want to grade it, how will you compel them to do so. Again, you need a willing lawyer.
Also, it might help to make sure that the attorneys for the gov. agency you are dealing with are aware of this issue as soon as possible. The agency itself won't contact them until or unless they they need to. But if the attorneys know about it, and don't think it's worth pursuing (because you are persistent and consistent), they may have a 'talk' with the enforcing agents involved and 'suggest' that they back off or compromise.
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RedTailHawk
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# Posted: 19 Dec 2013 02:44pm - Edited by: RedTailHawk
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I contacted the town water dept this morning to set up a meeting for tomorrow. My plan is to review and possibly sign the ROW request (to avoid an eminent domain land grab in which they could then do what ever they want to my piece of land).
I'll keep you posted...
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bobrok
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# Posted: 19 Dec 2013 05:13pm
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Yes, review this, but have your attorney review it as well. It's fairly certain that their end of the situation is being taken care of by the town's attorney and you should have the same expertise working for you.
This could all be nothing, but it could be a problem also. What's this about an eminent domain land grab? Have you already been 'advised' (read: 'threatened') that this would likely happen?
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Rossman
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# Posted: 19 Dec 2013 05:24pm
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I wouldn't sign anything unless my lawyer reviewed it first, that's just me though!
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RedTailHawk
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# Posted: 20 Dec 2013 03:18pm - Edited by: RedTailHawk
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I've told them I would sign a temporary ROW (so they can get money for the construction released), but they must drop any and all civil actions (the one they filed prior to me buying the property and the recent claim for eminent domain).
They are having the document revised to reflect that agreement.
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bobrok
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# Posted: 20 Dec 2013 04:55pm
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Good work. See, you CAN fight city hall and win. Hope they obligated themselves to clean up after construction. 
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Kudzu
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# Posted: 21 Dec 2013 09:10am
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Someday you may want to hook up to city water. I am on a county water system and it sure is nice and convenient.
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toyota_mdt_tech
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# Posted: 21 Dec 2013 01:04pm
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Great ending Redtailhawk. I suspect they will clean up after they are done. I had the gas company burying line through my home (where i live, not my cabin back in 1992) and they came in, made the mess, cleaned it all up, leveled the soil and replanted the grass (through my front yard) and you would never know they were there. If you want to gate it to protect your land, you can have them install a nice shared gate so you can protect your property and they can keep their equipment protected too.
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neb
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# Posted: 21 Dec 2013 02:28pm
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Well good for you. Now they must hold up their part of the deal It might not hurt to have a lawyer look at it so it is done right.
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redlandfd
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# Posted: 22 Dec 2013 07:01pm
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Yes its better to make some kind of deal, otherwise they will invoke eminent domain and take your road for the market value of the land it occupies...then it becomes a public road and you could really lose control of who comes and goes across your property. Please keep us posted, I have a positive feeling about this one.
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BoatMan
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# Posted: 22 Dec 2013 08:44pm - Edited by: BoatMan
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"..then it becomes a public road.."
No.
While the government entity will get it's easement of ingress/egress one way or another, it will not become a public road.
As already mentioned, if the buyer has title insurance that covers the buyer's interests (not just the mortgagee's) that would be the first place I would look for redress.
Lacking buyer's title insurance, one could file suit against the seller for failure to disclose a material defect of title. If the buyer wins in court, then he has to contend with collecting a money judgement- not easy unless the seller has assets to go after. Unless the sum of money in question is rather large it is probably not worth going after. If the judgement is large, but the seller has few unencumbered assets, it is probably not worth the costs of pursuing. If the seller has wages and one can identify the employer, the wages can be garnished, but there are costs involved there as well. Bottom line; prevailing in court is just the
start of the battle.
Sometimes the bad guy wins.
I wish it were not so.
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BoatMan
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# Posted: 22 Dec 2013 09:11pm - Edited by: BoatMan
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"..This was all done by verbal agreement. That's how we do things in a small community..."
Sometime in the future this will most likely end up in court. Might take a while, maybe involve a property or two changing hands, might involve a lender refusing to loan against a parcel with no recorded legal road access. Hard to say at this point just what will go wrong, but something will.
As for "small communities," the idiom "good fences make good neighbors" originated in small communities.
Seems to me I have noted more litigation over easements in rural environments than in urban settings, although that observation is anecdotal and not statistical in nature.
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silverwaterlady
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# Posted: 22 Dec 2013 10:37pm - Edited by: silverwaterlady
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I highly doubt that BoatMan, It's a unorganized township. For hundreds of years the people of my township have taken care of things without the " help" of outsiders. I don't see that changing because we like being out here on our own in the West End!
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BoatMan
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# Posted: 23 Dec 2013 07:49am
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What if one of these "land-locked" cabins changes hands and the new owners decide to build their dream castle in the woods? The tandem dump trucks start rolling up and down the access road creating large ruts. Who is required to repair the road? There is nothing in writing stating that the cabin owner's are responsible. Can you threaten to deny them access, when there has been access allowed for so long? While the granting of permission, verbal or otherwise, is defense against adverse possession, it may not be defense against easement by implication.
I specifically passed over a bit of lakefront property that was really what I wanted; it was unusual in the the private property extended all the way to the water's edge, unlike most other property on the lake. But apparently everyone in the adjacent subdivision had been using the road down to that property as a lake access point. I could find no recorded easement allowing this but, by implication or prescription, it was entirely likely an easement did now exist. To complicate matters further, during the few weeks I was considering this property the county road grader came down and graded the road on the property in question. Apparently the county had been maintainng this road (on private property) for quite some time. I was looking for a place to "get away" from hassles; not a place that was going to present me with more.
So I passed that one up and eventually bought a parcel fronting on a county road, just to avoid having to deal with maintaing my own road, or dealing with the private roads of an association.
Now, the county refuses to maintain the county road. If I want it graded, I have to pay for it. And the public is entitled to use the road I pay to maintain. And make ruts in it.
The Hatfields and McCoys did not care much for "outsiders."
Which doesn't mean that they got along with each other.
One makes verbal real estate deals at their own peril.
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silverwaterlady
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# Posted: 23 Dec 2013 09:06am
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Well I don't deal in "whatif's". Don't let my kindness extended to neighbors bother you so much. It's none of your business.
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Kudzu
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# Posted: 23 Dec 2013 08:21pm
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Quoting: silverwaterlady Well I don't deal in "whatif's". Don't let my kindness extended to neighbors bother you so much. It's none of your business.
eggszackly
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MtnDon
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# Posted: 23 Dec 2013 08:42pm
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It is up to the individual to make their own decisions.
As for myself I am uncomfortable with land locked properties and unofficial easements, to the point where I would avoid being associated with such a deal. There are some real dangers there. The pleasant present can change into a future fraught with discord if the neighbors change. Even the offspring of current model neighbors can be real thorns to deal with at times.
Anybody can agree or disagree and that is fine.
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redlandfd
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# Posted: 23 Dec 2013 10:41pm
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Boatman, If they invoke imminent domain why would they settle just for ingress and egress. If it goes to court it would be logical on their part to take the road (rule of thumb in these kinds of cases is "only go to the judge once and make sure you get what you want all at once") If the township only settles for ingress/egress then they have limited themselves forever, you can bet their lawyer will advise them to condemn and take the road. While everyone might play nice with the road in controlling access for a few years. board members come and go and eventually sombody's brother in law will want to use the road to get to their trout hole, deer stand, dope patch, or whatever...and the good ole boys on the board will slowly open it up to the public by default since "it now belongs to the taxpayers" or the sheriff won't arrest anybody for trespassing since its a gov't easement, you get the drift. I've been on both sides of a couple of very similar cases. I've served on utility boards and I know most operate with the same mindset. If it goes to court they will go for and get all the "marbles". That's why I say get a easement deal now, in writing, maybe with a "repair clause" on the road instead of a full blown road maintenance agreement. That way he keeps ownership, stays out of court, and keeps some control. Just my two cents.
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BoatMan
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# Posted: 26 Dec 2013 11:01am - Edited by: BoatMan
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A lesson on one way a private road becomes a public road:
http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19940727_0001.MO.htm/qx
"Kindness to the neighbors" evidently led to a public road.
But your displeasure with my concern over the situation you
are placing yourself in is duly noted.
".. If they invoke imminent domain why would they settle just for ingress and egress..."
Because they would not get it. The public does not require access to the pumps.
".. you can bet their lawyer will advise them to condemn and take the road..."
I would not consider that a safe bet for me to take.
But look at it another way; if a publicly-maintained road WERE to be put in, would that present an opportunity for the orignal poster to subdivide his land and sell it off at a profit? I have seen where the owners of large parcels built roads at their own expense, gave the roads to a government entity for use as public roads, and made large fortunes selling-off the land along these newly-built public roads.
I believe the O.P has mentioned that his property is at the edge of the Washington DC area?
Remember the old idiom about lemons and lemonade.
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